UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-7213

CALVIN ANGELO COWARD,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Malcolm J. Howard, District Judge.

(CR-90-52-H, CA-96-63-4-H)

Submitted: November 26, 1996

Decided: January 26, 1998

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

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Dismissed by unpublished per curiam opinion. Judge Motz concurs

only in the judgement.

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COUNSEL

Calvin Angelo Coward, Appellant Pro Se. Barbara Dickerson Kocher,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Calvin Coward seeks to appeal the district court's order denying

his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.

1997). He attacks his conviction for aiding and abetting the use or

carrying of a firearm during and in relation to a drug trafficking

offense, see 18 U.S.C.A. § 924(c)(1) (West Supp. 1997), alleging primarily that "there was insufficient evidence to show active employment of the firearm." (Petitioner's Memorandum in Support of § 2255

Motion at 5.) The district court denied Coward's motion, stating that

it had

carefully considered this matter, particularly as relates to

this court's interpretation of Bailey v. United States, 116

S. Ct. 501, 133 L.Ed.2d 472 (1995). This court concludes

that Bailey did not change the interpretation of the "carrying" prong of 18 U.S.C. § 924(c). Additionally, Bailey did

not change the interpretation of "aiding and abetting" the

carrying of a firearm.

See United States v. Coward, Nos. 4:90-CR-52-2-H; 4:96-CV-63-H

(E.D.N.C. July 9, 1996).

Although Bailey did not expressly change the interpretation of the

"carrying" prong of 18 U.S.C.A. § 924(c)(1), we have recently clarified what it means to carry a firearm in connection with a drug trafficking offense. See United States v. Mitchell , 104 F.3d 649, 653 (4th

Cir. 1997) (holding that "the plain meaning of the term `carry' as used

in § 924(c)(1) requires knowing possession and bearing, movement,

conveyance, or transportation of the firearm in some manner"). Under

this statutory definition of "carry," it is clear that Coward's cousin

(the principal) carried a firearm during and in relation to a drug trafficking offense. He admitted that he was in possession of the revolver

and the evidence established that he transported or conveyed the

weapon in connection with the drug offense. Cf. id. at 654. In addition, Bailey did not change the interpretation of "aiding and abetting"

the carrying of a firearm. See United States v. Price, 76 F.3d 526, 529

(3d Cir. 1996) (holding post-Bailey that defendant aided and abetted

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the carrying of a firearm in violation of § 924(c)); see also United

States v. Martin, 25 F.2d 211, 213 (4th Cir. 1994) (defendant convicted of aiding and abetting violation of § 924(c)); United States v.

Adkins, 937 F.2d 947, 950 (4th Cir. 1991) (discussing § 924(c)(1) liability under aiding and abetting theory). Accordingly, we conclude

that the evidence is sufficient to support Coward's conviction.

Although Coward raised only a sufficiency claim in his § 2255

Motion (Motion at 5), he raised the issue of instructional error in his

supporting papers (Petitioner's Memorandum in Support of § 2255

Motion at 18-21). According to Coward, he was "tried on [an] erroneous jury instruction that allowed a jury to broadly construe 924(c) to

encompass acts that were not criminal." (Petitioner's Memorandum in

Support of § 2255 at 19.) Because Coward did not object to the jury

instructions at trial, we review his conviction for plain error under

Federal Rule of Criminal Procedure 52(b). See United States v.

Hastings, No. 94-5670 (4th Cir. Jan 14, 1998); see also United States

v. Olano, 507 U.S. 725, 731-32 (1993); United States v. Cedelle, 89

F.3d 181, 184 (4th Cir. 1996).

Our review of the district court proceedings reveals that -- in light

of the Supreme Court's decision in Bailey and our decision in

Mitchell -- the district court's jury instruction on the § 924(c)(1)

charge was error, see Olano, 507 U.S. at 732-33, that is "`clear' or . . .

`obvious,'" id. at 734. We are not convinced, however, that the district court's erroneous jury instruction affected Coward's "substantial

rights." See id. The language "affecting substantial rights" "means that

the error must have been prejudicial: It must have affected the outcome of the district court proceedings." Id. An error not affecting the

outcome of the trial, i.e., a harmless error, does not affect a defendant's substantial rights and does not satisfy the requirements of

plain-error analysis under Olano.

It is firmly established that "improperly instructing the jury on an

element of the offense . . . [is] an error which is subject to harmlesserror analysis." Johnson v. United States, 117 S. Ct. 1544, 1550

(1997) (citing Yates v. Evatt, 500 U.S. 391 (1991); Carella v.

California, 491 U.S. 263 (1989); Pope v. Illinois, 481 U.S. 497

(1987); Rose v. Clark, 478 U.S. 570 (1986)). Applying harmless-error

analysis to the misinstruction in this case, we conclude that Coward

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was not prejudiced by the district court's erroneous jury instruction.

Cf. Hastings, slip op. at 9 (setting forth "the standard for determining

when an error of misinstruction [is] . . . harmless"). Coward and his

cousin were in the back bedroom of a house when police officers executed a search warrant. As the officers approached the bedroom, they

heard an object hit the floor. Upon entering the room, the officers discovered a revolver lying on the floor between Coward and his cousin.

A large quantity of drugs and drug paraphernalia were also found in

the room. Coward's cousin admitted that he was in possession of the

revolver, and, as we have said, evidence presented at trial established

that Coward's cousin "carried" the firearm in the post-Bailey and

post-Mitchell sense of those terms. The jury convicted Coward of

possessing cocaine with the intent to distribute and of aiding and abetting the use or carrying of a firearm during and in relation to a drug

trafficking offense.

Even if we assumed that Coward's substantial rights were affected

by the district court's erroneous instruction, we would nevertheless

decline to notice the error. An appellate court may exercise its discretion to notice (and correct) forfeited error after concluding that the

error "seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings." Olano, 507 U.S. at 736 (alteration in original).

In this case that question must be answered in the negative. The evidence that Coward aided and abetted the carrying of a firearm during

and in relation to a drug trafficking offense is overwhelming. And, as

the Supreme Court has held, where the evidence supporting a conviction is overwhelming, "there is no basis for concluding that the error

`seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.'" Johnson, 117 S. Ct. at 1550 (alteration in original).

"Indeed, it would be the reversal of a conviction such as this which

would have that effect." Id. Accordingly, we decline to notice the

error.

We therefore deny a certificate of appealability and dismiss the

appeal. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

DISMISSED

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